Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another

Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another

Matter of Stukes v City of White Plains, 2018 NY Slip Op 05474, Appellate Division, Second Department

The Executive Director of the Commission [Director] initiated disciplinary charges against his subordinate, an Assistant Director [Assistant] alleging that Assistant had violated policies prohibiting workplace violence following the Assistant's having had an altercation with Director at the workplace. After a hearing before a hearing officer, the hearing officer found Assistant guilty of  "13 of the factual specifications alleged in the charges" served on Assistant and recommended termination of Assistant from his employment with the Commission.

Director disqualified himself from reviewing the hearing officer's recommendations and making a final determination in consideration of the fact that he had preferred the charges against Assistant and designated the Chair of the Commission [Chair] to act in his stead. The Chair adopted the findings of the hearing officer and imposed the recommended penalty of termination of Assistant's employment.

Subsequently Assistant initiated a CPLR Article 78 proceeding seeking to annul the Chair's determination, contending that Chair "was not a duly qualified individual to whom [Director] could properly delegate the power to review the hearing officer's recommendations and make a final determination." Supreme Court found the delegation of the authority to make the challenged decisions  from Director to Chair to be proper, granted the City of White Plain's motion to dismiss Assistant's petition and dismissed the proceeding. Assistant appealed.

The Appellate Division commenced its review of Assistant's appeal by observing that "Civil Service Law §75(2) provides that where, as here, an officer having the power to remove an employee who is the subject of disciplinary proceedings designates someone else to conduct a hearing, the matter shall be referred back to that officer or body for review and decision."

However, said the Appellate Division, although as a general rule the authority to make the final determination as to the charged employee's status may not be delegated, "courts have recognized that the statutory command must yield to an employee's right to a fair and impartial hearing when such an official is personally involved in the proceedings by preferring the charges at issue and testifying at the hearing, or otherwise involving himself or herself extensively in the proceedings."

In the words of the court, "In such circumstances, such an official acts improperly when he or she also renders the final determination." Citing Matter of McComb v Reasoner, 29 AD3d 795, the Appellate Division noted that the Court of Appeals has interpreted Civil Service Law §72(2)  to "require[ ] that the power to discipline be delegated, if necessary, within the governmental department's chain of command" and that the Court of Appeals has further interpreted Civil Service Law §72(2) to:

1. require that the power to discipline be delegated, if necessary, within the governmental department's chain of command (see Matter of Gomez v Stout, 13 NY3d 182); and

2. whether a particular delegation will fall within the affected department's chain of command, and, hence, is permissible appears to turn upon whether the body or official to whom review power is delegated possesses either supervisory authority over the employee at issue or administrative responsibility over the affected department and its personnel" (see Matter of Zlotnick v City of Saratoga Springs, 122 AD3d 1210).

Giving Assistant "the benefit of every favorable inference," the Appellate Division concluded that Supreme Court's determination that the Chair's position with the Commission was within the affected department's chain of command and, thus, the delegation of authority from Director to the Chair was proper.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05474.htm

Removing a school official for an alleged unauthorized disclosure of confidential information

Removing a school official for an alleged unauthorized disclosure of confidential information

Decisions of the Commissioner of Education, Decision of the Commissioner No. 17,422

This appeal to the Commissioner, among other issues, concerned allegations that confidential information was disclosed and that the alleged wrongdoers should be removed from office.

With respect to the application to the Commissioner seeking the removal of a board member from the School Board "for impermissibly disclosing confidential notes," the Commissioner observed that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

Further, explained the Commissioner, "[t]o be considered willful, the board member’s actions must have been intentional and with a wrongful purpose" and   in an appeal or removal application to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

School board members, as public officers, take an oath of office to uphold the law and faithfully discharge their duties and, among other things, are responsible for educational standards, budget matters, management issues, and health and safety. In carrying out their duties, school board members individually "have a fiduciary obligation to act constructively to achieve the best possible governance of the school district.

The Commissioner said that General Municipal Law §805-a(1)(b) specifically provides that no municipal officer or employee, including a school board member, shall “disclose confidential information acquired by him [or her] in the course of his [or her] official duties or use such information to further his [or her] personal interests” and within the public school system, the term “confidential,” means “[i]nformation that is meant to be kept secret.”

As to defining the meaning of the word "confidential," it is the "sole province of the Commissioner of Education to define the meaning of the word 'confidential' within the public school system and ensure its uniform application in this context."* Further, said the Commissioner, "[i]t is well-settled that a board member’s disclosure of confidential information which violates General Municipal Law §805-a(1)(b) may constitute grounds for a board member’s removal from office pursuant to Education Law §306.

Jessica Lovinsky and Phee Simpson [Petitioners] in this appeal claim that a board member disclosed “unredacted” notes to a newspaper reporter and buttress their claim with an email from the reporter to counsel for Simpson in which the reporter states that she is “writing an article on the Poughkeepsie district’s graduation investigation and subsequent appeal,” and that, in the article, she planned to “cit[e] records that relate[d] to Phee Simpson. The email also purported to include three attachments that Petitioners have attached, contending that they are copies of these three attachments.

The School District's answer to Petitioners' appeal to the Commissioner denied Petitioners' contentions. 

The Commissioner ruled that Petitioners failed to meet their burden of proving that the School Board, as a body, or any individual school board member was responsible for disclosing the documents in question to the reporter or to anyone else. 

The Commissioner explained that the first element of a claimed disclosure of confidential information is disclosure, and a petitioner must prove that the alleged actor or actors did, in fact, disclosed allegedly confidential information. Here, however, said the Commissioner,  "Petitioners have wholly failed to meet this showing, providing no facts or assertions suggesting that any respondent provided the [newspaper reporter] with the allegedly confidential information."

Accordingly, the Commissioner dismissed Petitioners' application seeking the removal of the board member.

* N.B. In 2005 State Education Department Counsel and Deputy Commissioner for Legal Affairs notified school officials, including school board members, and school attorneys of the Commissioner's decision in Application of Nett and Raby (45 Ed Dept Rep 259, Decision No. 15,315)] that the Commissioner’s views with respect to the term "confidential" differed from the interpretation of the term “confidential” offered by New York State’s Committee on Open Government.

The Commissioner's decision is posted on the Internet at:

 http://www.counsel.nysed.gov/Decisions/volume57/d17422

The doctrine of collateral estoppel bars the relitigation of a legal or factual issue that was previously decided

The doctrine of collateral estoppel bars the relitigation of a legal or factual issue that was previously decided

Washington v NYC Department of Education, USCA, 2nd Circuit, 17-3776-cv

In Grieve v Tamerin, 269 F.3d 149, the Circuit Court of Appeals said that the doctrine of collateral estoppel, also termed issue preclusion, bars re-litigation of a legal or factual issue that was previously decided where:

(1) the issues in both proceedings are identical,

(2) the issue in the prior proceeding was actually litigated and actually decided,

 (3) there was [a] full and fair opportunity to litigate in the prior proceeding, and

(4) the issue previously litigated was necessary to support a valid and final judgment on the merits.”

Further, the opinion continues, “New York courts will give administrative determinations preclusive effect if made in a quasijudicial capacity and with a full and fair opportunity to litigate the issue,” citing Burkybile v. Bd. of Educ. of Hastings-On-Hudson Union Free Sch. Dist., 411 F.3d 306.

In this action Janet Washington [Plaintiff] asserted that §3020-a hearings do not result in the sort of final judgment that can give rise to collateral estoppel in federal court. The Circuit Court of Appeals disagreed, explaining that "it is well-settled that a “[S]ection 3020-a hearing is an administrative adjudication that must be given preclusive effect” when the elements of collateral estoppel are satisfied."

The Circuit Court ruled that Plaintiff's §3020-a hearing satisfies the elements of collateral estoppel and has preclusive effect as the issue of alleged unlawful discrimination was actually litigated and decided, and the arguments raised in the §3020-a hearing were identical to those briefed for the discrimination claim on appeal. Further, said the court,  Plaintiff acknowledges that the hearing officer "ruled decisively and specifically on whether [Plaintiff] suffered disability discrimination after considering the arguments from each side," concluding that Plaintiff's “evidence of actual animus is weak” and that “just cause exists for the termination of [Plaintiff’s] employment”.

In the words of the court, "[t]he Section 3020-a hearing also afforded a full and fair opportunity to litigate the issue of discrimination. Plaintiff was permitted to request the production of material, call and cross-examine witnesses, and present relevant evidence...." The court acknowledged that Plaintiff had challenged certain of the arbitrator’s evidentiary decisions, but opined that "the proceeding is not rendered unfair or incomplete because some evidentiary rulings were unfavorable. "

Holding that the district court correctly concluded that the Plaintiff’s discrimination claims were collaterally estopped by the factual findings of her §3020-a hearing, the Circuit Court affirmed the lower court's ruling.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/112119e1-395f-4de2-89fe-3ac841261b89/1/doc/17-3776_so%20(2).pdf#page=3&zoom=auto,-146,394

Executive Order of the Governor protecting the personal privacy of public sector workers

Executive Order of the Governor protecting the personal privacy of public sector workers

Executive Order No. 183  [8 EO 183]

WHEREAS, the labor movement was born in New York State more than a century ago, when, in the wake of the Triangle Shirtwaist Factory fire New York became the first state to enact laws protecting workers; and

WHEREAS, the labor movement continues to thrive in New York, which today boasts the highest rate of union membership in the country – more than double the national rate;

WHEREAS, as the voice of working people, labor built the middle class and advanced the great progressive achievements that we take for granted today – victories such as the Social Security Act, the Fair Labor Standards Act establishing the 40-hour work week, set ting a minimum wage and prohibiting child labor, the Equal Pay Act banning gender wage discrimination, and the Occupational Safety and Health Act; and

WHEREAS, across New York State and this country, workers’ personal information such as their home addresses and cell phone numbers, are being used to attack, harass, and intimidate them; and

WHEREAS, although today’s decision by the United States Supreme Court in Janus v AFSCME attempts to undermine worker safety and privacy, New York State will not subject public sector workers to the abuse of their personal information as part of a campaign to harass and intimidate workers for any reason, including engaging in union activities or looking to unionize.

NOW, THEREFORE, I, ANDREW M. CUOMO, Governor of the State of New York, by, virtue of the authority vested in me by the Constitution and laws of the State of New York, do hereby order as follows:

A. Definitions

‘‘State entity’’ shall mean (i) all agencies and department s over which the Governor has executive authority, and (ii) all public benefit corporations, public authorities, boards, and commissions, for which the Governor appoints the Chair, the Chief Executive, or the majority of Board members, except for the Port Authority of New York and New Jersey.

B. Responsibilities of State Entities

No State entity, including any of its officers or employees, shall disclose: (a) the home address(es), personal telephone number(s), personal cell phone number(s), personal e-mail address(es) of a public employee, as the term ‘‘public employee’’ is defined in Article 14 of the Civil Service Law, except (i) to an employee organization that, in accordance with Article 14 of the Civil Service Law, is the certified or recognized bargaining representative of a unit of public employees; (ii) to a bona fide employee organization that, in accordance with Article 14 of the Civil Service Law, is legitimately seeking to be certified or recognized as bargaining representative of a unit of public employees solely for purposes of aiding such employee organization in obtaining certification or recognition; or (iii) to the extent compelled to do so by lawful service of process, subpoena, court order, or as otherwise required by law. 

This order shall not apply to work-related, publicly available information such as title, salary, and dates of employment.

(L.S.)

GIVEN under my hand and the Privy Seal of

the State in the City of Albany this twenty-

seventh day of June in the year two thousand

eighteen.

BY THE GOVERNOR

/S/ Andrew M. Cuomo

/s/ Melissa DeRosa

Secretary to the Governo

Executive Order of the Governor protecting the personal privacy of public sector workers

Executive Order of the Governor protecting the personal privacy of public sector workers

Executive Order No. 183  [8 EO 183]

WHEREAS, the labor movement was born in New York State more than a century ago, when, in the wake of the Triangle Shirtwaist Factory fire New York became the first state to enact laws protecting workers; and

WHEREAS, the labor movement continues to thrive in New York, which today boasts the highest rate of union membership in the country – more than double the national rate;

WHEREAS, as the voice of working people, labor built the middle class and advanced the great progressive achievements that we take for granted today – victories such as the Social Security Act, the Fair Labor Standards Act establishing the 40-hour work week, set ting a minimum wage and prohibiting child labor, the Equal Pay Act banning gender wage discrimination, and the Occupational Safety and Health Act; and

WHEREAS, across New York State and this country, workers’ personal information such as their home addresses and cell phone numbers, are being used to attack, harass, and intimidate them; and

WHEREAS, although today’s decision by the United States Supreme Court in Janus v AFSCME attempts to undermine worker safety and privacy, New York State will not subject public sector workers to the abuse of their personal information as part of a campaign to harass and intimidate workers for any reason, including engaging in union activities or looking to unionize.

NOW, THEREFORE, I, ANDREW M. CUOMO, Governor of the State of New York, by, virtue of the authority vested in me by the Constitution and laws of the State of New York, do hereby order as follows:

A. Definitions

‘‘State entity’’ shall mean (i) all agencies and department s over which the Governor has executive authority, and (ii) all public benefit corporations, public authorities, boards, and commissions, for which the Governor appoints the Chair, the Chief Executive, or the majority of Board members, except for the Port Authority of New York and New Jersey.

B. Responsibilities of State Entities

No State entity, including any of its officers or employees, shall disclose: (a) the home address(es), personal telephone number(s), personal cell phone number(s), personal e-mail address(es) of a public employee, as the term ‘‘public employee’’ is defined in Article 14 of the Civil Service Law, except (i) to an employee organization that, in accordance with Article 14 of the Civil Service Law, is the certified or recognized bargaining representative of a unit of public employees; (ii) to a bona fide employee organization that, in accordance with Article 14 of the Civil Service Law, is legitimately seeking to be certified or recognized as bargaining representative of a unit of public employees solely for purposes of aiding such employee organization in obtaining certification or recognition; or (iii) to the extent compelled to do so by lawful service of process, subpoena, court order, or as otherwise required by law. 

This order shall not apply to work-related, publicly available information such as title, salary, and dates of employment.

(L.S.)

GIVEN under my hand and the Privy Seal of

the State in the City of Albany this twenty-

seventh day of June in the year two thousand

eighteen.

BY THE GOVERNOR

/S/ Andrew M. Cuomo

/s/ Melissa DeRosa

Secretary to the Governo